Ensuring fair access to justice for vulnerable clients

Zara Afzal

By Zara Afzal, Trainee Solicitor, Consumer Claims at Legal Futures Associate Express Solicitors ^[1]

Vulnerabilities can come in all forms and are not always glaringly obvious, varying from permanent to situational and/or temporary. This may include:

• Mental health conditions and cognitive impairments
• Physical conditions including mobility, chronic illnesses and sensory disabilities
• Language or communication barriers
• Experience of high stress, bereavement, trauma
• General fear or distress related to the legal proceedings.

Vulnerabilities can affect a client’s ability to effectively partake in legal proceedings, recognising signs of vulnerability is key in ensuring appropriate adjustments and protections are in place to act in the best interests of every client.

Taking an active approach in observing a client’s response to interactions can provide indicators as to whether they are potentially vulnerable, as often clients will not self-disclose. Any signs of confusion, distress or difficulty in understanding information provided should be addressed with sensitivity and reassurance.

Legal professionals must ensure clients understand their legal position, the implications of proceedings to make informed decisions and feel safe and supported throughout the process. Steps that can be taken to support a client may include simplifying language used, breaking down advice into manageable chunks and involving support professionals such as interpreters where language barriers exist.

It is important to question the client on their preferred methods of communication to ensure information is understood. This may include providing documents in accessible formats like large print or offering telephone discussions for lengthy advice followed up by written communication. Support can also be as straightforward as adjusting the pace of verbal advice, allowing the client additional time for questions.

The court should be informed at the earliest possible stage so that any adjustment directions can be considered. The claim form is the ideal place to highlight this on commencement of proceedings, as this explicitly asks for details of vulnerable parties along with support and adjustments the court needs to consider. The overriding objective is to ensure that proceedings are conducted fairly and that the vulnerable parties are not disadvantaged in any way.

Vulnerability under Practice Direction 1A

PD1A recognises the varying needs of individuals, providing a broad and inclusive definition for vulnerabilities:

“A person should be considered as vulnerable when a factor — or combination of factors — may adversely affect their ability to participate fully in proceedings or give evidence.” Including, but not limited to:

1. a) age, immaturity or lack of understanding
2. b) communication or language difficulties (including literacy)
3. c) physical disability or impairment, or health condition
4. d) mental health condition or significant impairment of any aspect of their intelligence or social functioning (including learning difficulties)
5. e) the impact on them of the subject matter or facts relevant to the case
6. f) their relationship with a party or witness (examples being sexual assault, domestic abuse or intimidation – actual or perceived) and
7. g) social, domestic or cultural circumstances.

PD 1A encourages the use of “special measures”, which may include:

(a) preventing a party or witness from seeing another party or witness by the use of screens

(b) allowing a party or witness to give evidence remotely by video conference

(c) hearing a party or witness’s evidence in private

(d) dispensing with the wearing of wigs and gowns

(e) admitting pre-recorded video evidence

(f) questioning a party or witness through an intermediary and

(g) using a device or other aid to help a party or witness communicate.

IMX v Bicknell [2024] EWHC 2183 KB is an exemplary case whereby special measures were utilised in a personal injury case. The claim related to damages the claimant sought against her stepfather relating to childhood abuse. The defendant was a litigant in person and during proceedings wanted to cross-examine the claimant. Practise Direction 1A provided the starting point for identifying the claimant as a vulnerable party considering the potential impact that giving evidence and the case itself would have on the claimant as an individual along with her relationship with the defendant. As a result, the court allowed for the claimant to present evidence remotely.

Remote hearings and vulnerability

There has been a rise in hearing listed remotely post-pandemic and while this offers flexibility, it may cause challenges for some vulnerable individuals with limited access to technology or those who are not digitally literate. Legal representatives must assess whether their client can meaningfully participate in a remote hearing and advocate for in-person hearings or hybrid alternatives if necessary.

In practise, recognising and responding to vulnerability from the outset of a case is vital to ensure all parties have an equal footing in proceedings this includes engaging with the court to ensure appropriate measures are in place to safeguard parties.